Case 1:15-cv-00327-RP Document 56 Filed 04/20/16 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JULIAN M. REYES,

Plaintiff

v. 1:15-CV-327-RP

CITY OF AUSTIN, DANIEL WALSH,
individually, CHRISTOPHER ANDERSON,
individually, HUBERT ART ACEVEDO,
individually and in his official capacity, and
MARC OTT, individually and in his official
capacity,

Defendants.

ORDER

Before the Court is Defendants Amended Motion to Dismiss (Dkt. 49) and the responsive

pleadings thereto. After reviewing the pleadings, the relevant law, and the factual record, the Court

issues the following Order.

I. Background

Plaintiff Julian Reyes (Reyes) brings this civil action against Defendants City of Austin (the

City), Officer Daniel Walsh (Walsh), Officer Christopher Anderson (Anderson), Austin Police Chief

Hubert Art Acevedo (Acevedo), and Austin City Manager Marc Ott (Ott).

Reyes, an Austin resident, does not have a house. Instead, he and his companion dog Shiner

Bock (Bock) lived together in Reyess truck. (Pl.s Fourth Am. Compl., Dkt. 47, 12). At midnight on

April 25, 2013, Reyes and Bock were at Reyess rented storage unit, (Id. 29), when Walsh and

Anderson and several other Austin Police Department (APD) officers were called about a banging

noise and suspected theft at a construction site nearby. (Id. 30). After arriving at the storage facility,

the officers parked their cars outside the facilitys gate while they awaited a K9 unit that could help

them investigate. (Id. 32). The officers determined the banging noise was caused by the wind blowing

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a piece of loose aluminum siding at an unsecured construction site located near the front, left side of

the storage facility. (Id. 31).

Rather than wait outside the facility with the other officers, Walsh drove his vehicle past the

marked boundary line. (Id. 33). He parked his vehicle near the back of the facility, exited, and

approached Reyess storage unit on foot. (Id. 34, 36). Upon getting closer, he heard Bocks bark and

saw the dog standing outside the unit. (Id. 40). He shouted Dont move! Get back! (Id. 41). Bock

barked again, and Walsh shot him in the chest. (Id.). Bock bled to death. (Id. 42).

After the gunshots, Reyes calmly exited his storage unit. (Id. 48). Walsh pointed his gun at

Reyes and forced him to the ground. (Id. 49). Having heard gunshots, the other officers entered the

storage facility and ran from the front gates to Reyess unit. (Id. 52). Anderson handcuffed Reyes. (Id.

53). Walsh then searched Reyess person. (Id.). Contemporaneously, Walsh and Anderson searched

Reyess storage unit and truck. (Id. 54). Reyes repeatedly asked the officers what had happened to

Shiner Bock. (Id. 56). Eventually, an officer stated Your dog is dead. (Id.). Reyes remained

handcuffed for several minutes. (Id. 57). Even after his eventual release from handcuffs, [Reyes] did

not feel free to leave the scene because numerous officers remained around his car and storage unit,

and they continued to question him. (Id. 58). Additionally, he did not feel free to leave because of his

prior violent restraint and the officers use of lethal force against Shiner Bock. (Id.).

Reyes alleges ten counts. He invokes his Fourth and Fourteenth Amendment rights to claim

defendants have unreasonably searched and seized his property, unlawfully seized him, failed to train

and supervise APD officers and adopted policies causing violations of his constitutional rights, and failed

to provide procedural due process. (Id. Counts 1 7). He further claims under state law for theft,

negligence, and negligent training and supervision. (Id. Counts 8 10).

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Defendants have moved to dismiss. They claim alternatively that they are entitled to immunity,

that Reyes has failed to state claims upon which relief can be granted, and that Reyes has failed to plead

sufficient factual matter to support his claims against them.

The parties have briefed the issues and they are ripe for review.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of an action for failure to state a

claim upon which relief can be granted. When evaluating a motion to dismiss under Rule 12(b)(6) the

complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken

as true. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164

(1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court accepts all well pleaded facts as

true, viewing them in light most favorable to the plaintiff. In re Katrina Canal Breaches Litigation, 495

F.3d 191, 205 (5th Cir. 2007) (internal quotes and citations omitted). Federal Rule of Civil Procedure 8

requires a plaintiffs complaint to contain nothing more than a short and plain statement of the claim

showing that the pleader is entitled to relief. However, this standard demands more than a formulaic

recitation of the elements of a cause of action, or naked assertion[s] devoid of factual

enhancement. Bell Atlantic v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain

sufficient factual allegations, accepted as true, to state a claim to relief that is plausible on its face. Id.

at 570.

This standard is guided by two principles. First, the tenet that a court must accept a complaint's

allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by

mere conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Second, determining whether

a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its

experience and common sense. Id. at 663-64. Thus, [a] court considering a motion to dismiss may

begin by identifying allegations that, because they are mere conclusions, are not entitled to the

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assumption of truth. Id. at 664. However, [w]hen there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they plausibly give rise to an entitlement to

relief. Id.

III. Discussion

A. Federal Causes of Action

Reyess first seven counts seek relief for violations of his federal constitutional rights. Section

1983 provides the vehicle for his civil action. 42 U.S.C. 1983. There are two essential elements to any

section 1983 claim. First, the conduct complained of must have been committed by a person acting

under color of state law; . . . second, this conduct must have deprived the plaintiff of rights, privileges, or

immunities secured by the Constitution or laws of the United States. Augustine v. Doe, 740 F. 2d 322,

324 25 (5th Cir. 1984). The parties do not dispute that, at all relevant times, Officers Walsh and

Anderson, the City, Acevedo, and Ott acted under color of state law. Instead, the parties dispute and

the Court addresses whether the state officials conduct deprived Reyes of his rights or privileges.

As Reyes brings suit by section 1983, his claims are subject to its strictures. One such stricture is

so-called qualified immunity. State officials performing discretionary functions under color of law are

entitled to qualified immunity from civil suit if their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982).

To determine whether qualified immunity applies, the courts apply the two-part test established

in Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009).

Under the Saucier framework, the Court decides: (1) whether facts alleged or shown by plaintiff make

out the violation of a constitutional right, and (2) if so, whether that right was clearly established at the

time of the defendant's alleged misconduct. Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009). To

be clearly established for purposes of qualified immunity, [t]he contours of the right must be

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sufficiently clear that a reasonable official would understand that what he is doing violates that right.

Kinney v. Weaver, 367 F.3d 337, 34950 (5th Cir.2004) (en banc) (alteration in original) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see also Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194

(5th Cir. 2009).

The Court will discuss section 1983 and its limitations as it applies to Reyess individual causes of

action.

Count 1: Unreasonable Seizure against Walsh

Reyes alleges Walsh unreasonably seized his property when he shot and killed Bock. (Pl.s Fourth

Am. Compl., Dkt. 47, 64). Defendants argue that, because Walsh believed Bock posed an imminent

danger, Walshs use of lethal force was not objectively unreasonable. (Defs. Mot. Dism., Dkt. 49, 4-

6]. Alternatively, Defendants claim Walsh is entitled to qualified immunity. Because the arguments

that Walsh acted objectively reasonably and that Walsh enjoyed qualified immunity overlap, the Court

addresses them in reverse order and only as needed.

Circuit courts routinely find that the killing of an individual's pet can constitute a seizure within

the meaning of the Fourth Amendment. Romero v. Bexar Cty., 993 F. Supp. 2d 658, 662 & n.3 (W.D.

Tex. 2014) (compiling sources); see also Andrews v. City of West Branch, 454 F.3d 914, 918 (8th

Cir.2006). Walsh acknowledges that killing Bock could constitute a seizure. He argues, however, that his

seizure was reasonable under the circumstances. In determining reasonableness, courts look at the facts

and circumstances from the perspective of a reasonable officer on the scene, rather than with the

20/20 vision of hindsight. Lytle v. Bexar Cty., 560 F.3d 404, 411 (5th Cir.2009). Courts must account for

the difficult and often split-second decisions that police officers must make in carrying out their duties.

Id.

Plaintiff alleges that he was contractually permitted 24-hour access to his storage unit; that his

unit is located on secured and monitored private property; and that the private property is clearly

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marked. While all of the other officers responding to the report of the banging noise parked their

vehicles outside the storage facilitys gates and called in a K9 unit, Walsh proceeded into the storage

facility, away from the construction site. It was only then that he encountered Bock.

Though Reyes concedes Bock barked at Walsh, he alleges that [a]t no point did Shiner Bock

move aggressively toward Officer Walsh. (Pl.s Fourth Am. Compl., Dkt. 47, 40). Reyess Complaint

further describes the on-scene investigation of the shooting, in which Walsh allegedly admitted to

another officer that Shiner Bock was just kinda walking at me, he wasnt, he didnt, I mean. . . before

breaking off the end of his sentence. (Id. 47) (emphasis in original). In short, Plaintiff has alleged that

Walshs seizure was objectively unreasonable. This allegation, based in factual assertions that the Court

must take as true, states a claim upon which relief can be granted. Dismissal is not appropriate at this

time. Cf. Kincheloe v. Caudle, A09CA010 LY, 2009 WL 3381047 (W.D.Tex. Oct. 16, 2009) (declining to

grant summary judgment when the parties offered differing views of the danger the dog posed to the

officer).

Count 2: Unlawful Arrest/Unreasonable Seizure against Walsh and Anderson

Reyes alleges that Walsh and Andersons actions toward him constituted an unreasonable

seizure or unlawful arrest. (Pl.s Fourth Am. Compl., Dkt. 47, 70). Defendants argue that their

detention was mere detention and did not rise to the level of an arrest and that the detention was

objectively reasonable and constitutionally permissible in light of the circumstances.

Reyes alleges Officers Walsh and Anderson arrested or at a minimum detained [him] when

they forced him to the ground at gunpoint, handcuffed him, questioned him, and caused him to

reasonably feel that he was not free to leave the scene for over thirty minutes. (Id. 68). The Fourth

Amendment applies to all seizures of the person, including seizures that involve only a brief detention

short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 (1968). [W]henever a police officer

accosts an individual and restrains his freedom to walk away, he has seized that person, and the

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Fourth Amendment requires that the seizure be reasonable. United States v. Brignoni-Ponce, 422 U.S.

873, 878 (1975) (quoting Terry v. Ohio, 392 U.S. 1, 16 (1968)). An officer may temporarily detain people

for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that

criminal activity may be afoot . . . . United States v. Sokolow, 490 U.S. 1, 6 (1989). An arrest, which is a

more severe deprivation of individual liberty, must be based on probable cause, which exists when the

totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are

sufficient for a reasonable person to conclude that the suspect had committed or was committing an

offense. United States v. Levine, 80 F.3d 129, 132 (5th Cir.1996).

Reyes has sufficiently alleged that he was seized, and that his seizure triggered the requirements

of the Fourth Amendment. Reyes has alleged that the requirements of the Fourth Amendment were not

satisfied Officers Walsh and Anderson had no arrest warrant, no probable cause or exigent

circumstances . . . and no reasonable suspicion that Mr. Reyes had committed, was committing, or was

about to commit a crime. (Pl.s Fourth Am. Compl., Dkt. 47, 69).

These factual allegations are sufficient to support a claim upon which relief can be granted. The

Court declines to dismiss Reyess Count 2.

Counts 3 & 4: Unreasonable Search against Officers Walsh and Anderson

Third and fourth, Reyes alleges that Officers Walsh and Anderson performed unconstitutional

searches when they searched Reyess storage unit and truck. (Pl.s Fourth Am. Compl., Dkt. 47, 75).

Defendants respond that Reyes did not see them search his unit and truck, and thus that Reyess

allegations, on information and belief, are conclusory. (Defs. Mot. Dism., Dkt. 49, 13). In other

words, Plaintiff does not allege that he saw the officers search his storage unit or truck nor does he

provide how he came to form this belief . . . . (Id. 13).

The Fourth Amendment ensures that [t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no

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warrants shall issue, but upon probable cause. [W]arrantless searches are per se unreasonable under

the Fourth Amendment. City of Ontario v. Quon, 560 U.S. 746, 760 (2010). The government bears the

burden of demonstrating the applicability of an exception to the warrant requirement. United States v.

Lonabaugh, 494 F. 2d 1257, 1260 (5th Cir. 1973) (citing Coolidge v. New Hampshire, 403 U.S. 443

(1971)). Defendants do not contest Reyess right to security in his unit and truck. Nor do they show the

applicability of an exception to the warrant requirement. Instead, the Defendants suggest the searches

did not occur.

According to his Complaint, Reyes was on the ground near the storage unit and truck when the

alleged searches would have occurred. (Pl.s Fourth Am. Compl., Dkt. 47, 49). He did not see officers in

his storage unit or truck because he allegedly was face-down on the ground and Walsh had forced him

to look away from the unit and truck. (Id. 29). Nonetheless, Reyess complaint alleges that Officers

Walsh and Anderson searched Mr. Reyess storage unit and his truck parked in front of the storage

unit. (Id. 54).

[I]nformation and belief pleadings are generally deemed permissible under the Federal Rules,

especially in cases in which the information is more accessible to the defendant. Johnson v. Johnson,

385 F. 3d 503, 531 n. 19 (5th Cir. 2004) (internal citation omitted). At this stage of the litigation, the

Court accepts Reyess factual assertions as true. See In re Katrina Canal Breaches Litigation, 495 F.3d, at

205. Though Reyes could not see officers searching his storage unit and truck and does not claim to have

seen them doing so, he could, plausibly, have relied on his other senses to reasonably conclude officers

searched his property. In other words, the facts Reyes has plead allow[] the court to draw the

reasonable inference that [defendants are] liable for the misconduct alleged. Iqbal, 556 U.S., at 678.

Defendants motion to dismiss Counts 3 and 4 are denied.

Counts 5 and 6: Failure to Train and Supervise, Implementation of a Policy that Deprived
Constitutional Rights, against the City, Acevedo, and Ott

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Reyes claims that the City of Austin and its officials, including Acevedo and Ott, formulated,

approved, and put into effect an inadequate training program regarding the use of force against

animals. (Pl.s Fourth Am. Compl., Dkt. 47, 77). The policy and training program allegedly caused the

violation of Reyess constitutional rights. (Id. 86).

Defendants move to dismiss on multiple grounds. First, Defendants argue that Reyes has failed

to plead facts supporting his claim that the City has failed to properly supervise its officers. According to

Defendants, [c]ities are almost never liable under 1983 for the isolated actions of their employees,

and this case is no exception. (Defs. Mot. Dism., Dkt. 49, 15). Second, Defendants argue that Reyes

has failed to plead facts supporting his claim that the City has failed to properly train its officers. (Id.

17). Finally, Defendants claim that Reyes has failed to assert any factual allegations against Acevedo

and Ott in particular, and thus that he cannot recover against them for failure to supervise and train. (Id.

19).

Section 1983 offers no respondeat superior liability. Pineda v. City of Houston, 291 F. 3d 325,

328 (5th Cir. 2002). Proof of municipal liability requires showing that (1) the municipality had an official

policy or custom, (2) of which a policy maker had actual or constructive knowledge, (3) that was the

moving force of a constitutional violation. See id. A failure to train police officers can give rise to

1983 liability. Brown v. Bryan County, 219 F. 3d 450, 457 (5th Cir. 2000) (internal citation omitted).

Liability for failure to train requires a showing of (1) inadequate training procedures, (2) causation, and

(3) deliberate indifference of municipal policymakers to the consequences of their training

procedures. See Pineda, 291 F. 3d, at 332.

Plaintiffs Complaint quotes the following municipal policy:

(b) To stop a dangerous and aggressive animal:

1. In circumstances where officers encounter any animal which reasonably

appears, under the circumstances, to pose an imminent threat of bodily
injury to officers or others, officers are authorized to use objectively

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reasonable force up to and including deadly force (when lesser means

would be impractical) to neutralize the threat.

(Pl.s Fourth Am. Compl., Dkt. 47, 18) (citing Austin Police Dept Policy 202.1.1(b)(1), October 2012)).

Plaintiff alleges the policy is deficient because it

did not and does not address any procedure or guidelines for evaluating whether an
animal is dangerous and aggressive, whether an animal poses an imminent threat of
bodily injury, or the objectively reasonable amount of force to use against an animal
when circumstances warrant the use of force.

(Id. 21). Further, Plaintiff alleges the policy does not address any protocol for escalating force against

an animal and when it is appropriate. (Id. 22). On information and belief . . . the custom and practice

of Austin police officers was to immediately use lethal force when encountering any dog the officer

subjectively believed was behaving aggressively. (Id. 25). The information includes the public

statement of APDs public-information officer, Jermaine Kilgore, that If a dog is acting aggressive

towards an officer and the officer feels that the dog is going to attack, the officer is . . . going to

eliminate that threat, the dog. And the only way to do that with the options that we have is with lethal

force. (Id.). The information further includes the alleged prevalence of police dog shootings at

least 21 shootings in the year 2012 alone. (Id. 79).

Reyes further alleges that the Citys training for police officers use of force against animals

required just two hours of classroom training (for cadets) or one hour of online video training (for

existing officers). (Pl.s Fourth Am. Compl., Dkt. 47, 24). He alleges that neither training program

included interactions with live animals, (id.); that the training program did not adequately educate

officers about the use of less-than-lethal force, or encourage officers to pursue lethal force only as a

last resort, (id.). Defendants policy, alongside Defendants failure to train, allegedly g[ave] rise to the

violation of Mr. Reyess Fourth Amendment rights . . . . (Id. 80). Defendants respond that these

barest of allegations do not support a policy or custom, let alone a policy or custom that violates

constitutional rights. (Defs. Mot. Dism., Dkt. 49, 16). The Court finds, however, that Reyes has plead

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sufficient facts to show causation. It was highly predictable failing to train officers regarding how to

act with aggressive animals would result in the constitutional violation alleged here. Cf. Schaefer v.

Whitted, 121 F. Supp. 3d 701, 719 (W.D. Tex. Aug. 5, 2015) ([I]t is highly predictable failing to train

officers regarding how to act with individuals legally entitled to carry firearms would result in the

constitutional violation alleged here . . . .).

Further, Reyes has sufficiently plead actual or constructive knowledge and deliberate

indifference, as required for municipal liability and failure-to-train liability, respectively. Plaintiff alleges

Acevedo and Ott were responsible for overseeing all aspects of City of Austins policy and training

regarding officers use of force against animals and were . . . aware of all the facts alleged in this

complaint regarding the policy and training, (Pl.s Fourth Am. Compl., Dkt. 47, 26), including the rate

of dog shootings by APD. (Id. 79). Plaintiff alleges that, despite this awareness, neither City of Austin,

Acevedo, nor Ott took any action to rectify any of the policy or training deficiencies described in this

complaint. (Id. 27). Defendants were on notice that a more effective training program and better

supervision were needed to prevent unjustified dog shootings . . . yet they failed to adequately provide

that training and supervision. (Pl.s Fourth Am. Compl., Dkt. 47, 79). 3 The alleged pattern of dog

shootings could evidence not only the existence of a policy but also official deliberate indifference.

Piotrowski v. City of Houston, 237 F. 3d 567, 582 (5th Cir. 2001).

Reyess pleadings, taken as true, suffice to substantiate claims on which relief can be granted.

Defendants motion to dismiss Counts 5 and 6 is denied.

Count 7: Procedural Due Process against the City, Acevedo, and Ott

Reyes alleges that the City, Acevedo, and Ott failed to provide adequate procedures by which

Reyes could challenge the deprivation of his property. He argues that these defendants failure deprived

3
Defendants argue that Reyes has not provided documentation or proof of these incidents. (Defs. Mot. Dism.,
Dkt. 49, 16). However, there is no requirement that Plaintiff prove otherwise plausible factual allegations in his
Complaint to defeat a motion to dismiss.

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him of the due process to which he is constitutionally entitled. (Pl.s Fourth Am. Compl., Dkt. 47, 89).

Defendants argue the claim should be dismissed because, [f]or each due process claim Plaintiff raises,

the Fourth Amendment provides an appropriate remedy (unreasonable search & seizure and failure to

train and supervise). (Defs. Mot. Dism., Dkt. 49, 20).

As discussed above, Reyes has sufficiently alleged that Walsh, a state officer, deprived Reyes of

a constitutionally protected property interest when he killed Bock. (Pl.s Fourth Am. Compl., Dkt. 47,

88). Ordinarily, the state may not take property without providing predeprivation notice and a hearing.

See Zinermon v. Burch, 494 U.S. 113, 127 (1990). However, when predeprivation process is not feasible

as when the deprivation is random or unauthorized , the unconstitutionality of a state deprivation can

be alleviated by the availability of adequate postdeprivation process under state law. See Parratt v.

Taylor, 451 U.S. 527 (1981). Such postdeprivation process negate[s] the contention that the deprivation

[is] without due process of law. Augustine v. Doe, 740 F. 2d 322, 325 (5th Cir. 1984). Postdeprivation

process, however, cannot cure every constitutional violation. Defendants presume Parratt applies, such

that a postdeprivation remedy in this case the Fourth Amendment, 5 (Defs. Mot. Dism., Dkt. 49,

20) negates the contention that the deprivation of Bock was without due process of law. Whether

Parratt applies, however, is an open question.

The controlling inquiry, in determining whether postdeprivation process can cure a

constitutional violation is whether the State is in a position to provide for predeprivation process.

Augustine, 740 F. 2d, at 327 28. States cannot provide a predeprivation process when the deprivation

is random and unauthorized they cannot guard against what they cannot foresee. Reyes, however,

contends that Walshs shooting Bock was not random and unauthorized. Rather, Walshs actions

were taken as a matter of custom and policy among Austin police officers. (Pl.s Fourth Am. Compl.,

Dkt. 47, 89).

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Because it does not need to, the Court will not address whether the constitutional remedies vindicated by 1983
constitute adequate postdeprivation process under state law.

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[W]here employees are acting in accord with customary procedures, the random and

unauthorized element required for the application of the Parratt/Hudson doctrine is simply not met.

Brooks v. George Cty., 84 F. 3d 157, 165 (5th Cir. 1996) (internal citations omitted). Plaintiffs allegations,

which the Court accepts as true on a motion to dismiss, preclude the application of Parratt. Cf. Kincheloe

v. Caudle, A-09-CA-10-LY, 2009 WL 3381047 *10 (W.D. Tex. Oct. 16, 2009). Defendants cannot fall back

on the availability of postdeprivation remedies; Reyes has stated a procedural due process claim upon

which relief can be granted.

Defendants motion to dismiss Reyess Count 7 is denied.

B. State Causes of Action

In addition to his federal causes of action, Reyes alleges three causes of action under state law.

Count 8: Texas Theft Liability Act against Officer Walsh

Reyes alleges Walshs shooting of Bock unlawfully appropriated Reyess property, thereby

violating the Texas Theft Liability Act (TTLA), TEX. CIV. PRAC. & REM. CODE 134.001 - .005. (Pl.s Fourth

Am. Compl., Dkt. 47, 93, 96). Defendants respond that Reyess statutory theft claim against Walsh is

a common-law theft claim in disguise, and therefore that the claim must be brought under the Texas

Tort Claims Act (TTCA).

The TTCA requires tort claims to proceed against officials in their official rather than individual

capacity. That is, a suit filed against an employee of a governmental unit based on conduct within the

general scope of that employees employment, insofar as the suit could have been brought under this

chapter against the governmental unit, is considered to be against the employee in the employees

official capacity only. TEX. CIV. PRAC. & REM. CODE, 101.106(f).

The parties disagree about whether a theft claim under the TTLA could have been brought

under [the TTCA] against the governmental unit. Put simply, the parties disagree about whether a theft

claim under the TTLA is a tort claim.

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The TTLA holds [a] person who commits theft to be liable for the damages resulting from the

theft. TEX. CIV. PRAC. & REM. CODE 134.002. A person commits an offense if he unlawfully appropriates

property with intent to deprive the owner of property that is, for instance, if he appropriates the

property without the owners effective consent. TEX. PENAL CODE 31.03(a) (b)(1). Defendants cite

cases from Texas appellate courts holding that claims brought under the TTLA, though statutory, are

nonetheless subject to the TTCA. See, e.g., Lopez v. Serna, 414 S.W. 3d 890, 893 96 (Tex. App. San

Antonio 2013, no pet.). According to Defendants, the focus is on whether the claim sounds in tort, not

the mechanism for prosecuting the claim. (Defs. Mot. Dism., Dkt. 49, 21 (quoting Fink v. Anderson,

S.W. 3d , 2015 WL 5634306 * 9 (Tex. App. Houston [1st Dist.] 2015, no pet. h.))). Reyes responds

that Defendants citations are not binding on this Court and that the courts cited do not articulate the

bases for their statement that TTLA claims should fall under the TTCA.

Because of the absence of binding legal precedent defining the intersection of the TTLA and the

TTCA, the Court falls back upon the plain text of the TTLA, informed by the legislative history. The TTLA

creates liability for damages resulting from theft occurring on or after the effective date of [the] Act. . .

. An offense committed before the effective date of this Act is covered by applicable law as it existed on

the date the offense was committed . . . . H. Comm. On Criminal Jurisprudence, Bill Analysis 1, Tex. S.B.

269, 70th Leg., R.S. 1987. In other words, Reyess allegations suffice to allege a theft actionable under

the TTLA. TEX. CIV. PRAC. & REM. CODE 134.002. The TTLA does not, on its face, limit recovery by the

TTCA. And the House Committee report indicates that the TTLA did not merely supplement the legal

remedies available in tort for theft; it supplanted those legal remedies. The Court finds that Reyes was

not required to proceed under the TTCA.

Defendants motion to dismiss Count 8 is denied.

Count 9: Negligence against City of Austin

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Reyes alleges the City is vicariously liable for Walshs alleged negligence in the scope of his

employment. (Pl.s Fourth Am. Compl., Dkt. 47, 98, 101). Reyes does not oppose the dismissal of his

vicarious-liability negligence claim against the City insofar as Strickland v. Medlen, 397 S.W. 3d 184, 197

98 (Tex. 2013) appears to bar all emotional-injury damages . . . from the negligent killing of a pet.

(Pl.s Resp., Dkt. 50, at 18). The premise of Reyess agreed dismissal appears to hold the Texas

Supreme Court has said [r]ecovery rooted in a pet owners feelings is prohibited. Strickland, 397 S.W.

3d, at 198.

Accordingly, Defendants motion to dismiss Count 9 is granted.

Count 10: Negligent Training and Supervising against City of Austin

Tenth and finally, Reyes argues the City is liable for negligent training and supervision under

Texas state law. (Pl.s Fourth Am. Compl., Dkt. 47, 106). Though Reyess Complaint alleges that his

claim falls within the waiver of sovereign immunity in the TTCA, (id. 111(b)), Defendants disagree.

(Defs. Mot. Dism., Dkt. 49, 29).

The TTCA waives governmental immunity for, first, property damage, personal injury and

death if the property damage, personal injury, or death arises from the use of a motor-vehicle and the

employee would be personally liable to the claimant according to Texas law, and, second personal

injury and death . . . caused by a condition or use of tangible personal or real property . . . .

TEX. CIV. PRAC. & REM. CODE, 101.021. The parties skip the first condition of waiver involving property

damage based on use of a motor vehicle if the employee would be personally liable and go straight to

the second. The second condition waives sovereign immunity for personal injury and death so caused

by a condition or use of tangible personal or real property . . . . TEX. CIV. PRAC. & REM. CODE, 101.021.

This latter condition may be inapposite Reyess loss of Bock is property damage, and not personal

injury or death. However, the Court cabins its discussion to the arguments presented by the parties.

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Texas waives sovereign immunity for claims arising out of personal injury and death . . . caused

by a condition or use of tangible personal or real property . . . . TEX. CIV. PRAC. & REM. CODE, 101.021.

[I]nformation is not tangible personal property, since it is an abstract concept that lacks corporeal,

physical, or palpable qualities. Texas Dept. of Public Safety v. Petta, 44 S.W. 3d 575, 580 (Tex. 2001). In

Petta, the Texas Supreme Court dismissed a failure-to-train claim because written information in the

form of instructions and manuals is not tangible personal property. Id. at 581. Reyes attempts to

distinguish Petta by claiming that his injuries were, in fact, caused by tangible personal property

Walshs service weapon.

However, Reyess negligent training and supervision claim goes beyond Walshs use of his

service weapon. It challenges the Citys training and supervision protocols for Austin police officers.

(Pl.s Fourth Am. Compl., Dkt. 47, 104). Though one alleged effect of these protocols is that Walsh was

unprepared to handle his encounter with Shiner Bock in a reasonable manner, (id. 105), the Citys

and not Walshs conduct is at issue. The Citys role is its providing or failing to provide the sort of

information, abstract and lacking corporeal, physical, or palpable qualities, that the Texas Supreme

Court has said falls outside the Citys waiver of sovereign immunity.

Accordingly, Defendants motion to dismiss Count 10 is granted.

IV. Conclusion

Defendants Amended Motion to Dismiss Plaintiffs Fourth Amended Complaint, (Dkt. 49), is

hereby GRANTED in part and DENIED in part.

The Court DISMISSES Reyess Counts 9 & 10. The Court DENIES Defendants motion to dismiss all

other claims.

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SIGNED on April 20, 2016

_____________________________________

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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